only a trespass. But of all valuable domestic animals, as horses and other beasts of draught, and of all animals domitae naturae, which serve for food, as neat or other cattle, swine, poultry, and the like, and of their fruit or produce, taken from them while living, as milk or wool (y), larceny may be committed; and also of the flesh of such as are either domitae or ferae naturae, when killed (z) (24).5 As to those animals, which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein, and maintain a civil action for the loss of them (a), yet they are not of such estimation, as that the crime of stealing them amounts to larceny (b). But by statute 10 Geo. III. c. 18. very high pecuniary penalties, or a long imprisonment, and whipping in their stead, may be inflicted by two justices of the peace (with a very extraor dinary mode of appeal to the quarter sessions), on such as steal, or knowingly harbour a stolen dog, or have in their custody the skin of a dog that has been stolen (c) (25).

Notwithstanding however that no larceny can be committed, unless there be some property in the thing taken, and an owner; yet, if the owner be unknown, provided there be a property, it is larceny to steal it; and an indictment will lie, for the goods of a person unknown (d). In like manner as among the Romans, the lex Hostilia de furtis provided that a prosecution for theft might be carried on without the intervention of the owner (e). This is the case of stealing a shroud out of.a grave; which is the property of those, whoever they were, that buried the deceased: but stealing the corpse itself, which has no owner, (though a matter of great indecency), is no felony, unless some of the grave-clothes be stolen with it (f) (26). Very different from the law of the Franks, which seems to have respected both as equal offences: when it directed that a person, who had dug a corpse out of the ground in order to strip it, should be banished from society, and no one suffered to relieve his wants, till the relations of the deceased consented to his re-admission (g).

Having thus considered the general nature of simple larceny, I come next to treat of its punishment. Theft by the Jewish law, was only punished with a pecuniary fine, and satisfaction to the party injured (h). And in the civil law, till some very late constitutions, we never find the now continued eighteen sessions of parliament unrepealed.

(y) Dal. 21. Crompt. 36. 1 Hawk. P. C. 93. 1 Hal. P. C. 507. The King v. Martin, by all the judges. P. 17 Geo. III.

(z) 1 Hal. P. C. 511.

(a) See Book II. page 393.

(b) 1 Hal. P C. 512.

(c) See the remarks in page 4. The statute hath

(24) By statute 7 and 8 Geo. IV. c. 29, 25, it is enacted, "That if any person shall steal any horse, mare, gelding, colt, or filly, or any bull, cow, ox, hreifer, or calf, or any ram, ewe, sheep, or lamb, or shall wilfully kill any of such cattle, with intent to steal the carcass, or skin, or any part of the cattle so killed, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon."t

(25) By statute 7 and 8 Geo. IV. c. 29, 31, stealing any dog, beast, or bird ordinarily kept in a state of confinement, and not the subject of larceny at common law, is punishable by fine not exceeding 201., together with the value of the dog, &c. lost, for the first of

(d) 1 Hal. P. C. 512.

(e) Gravin. l. 3, 106.

(f) See Book II. page 429.

(g) Montesq. Sp. L. b. 30, ch. 19.
(h) Exod. c. xxii.

fence, and imprisonment not exceeding twelve
months, and whipping for the second offence.
By ◊ 32, persons being found in possession of
any stolen dog, or beast, or the skin thereof, or
any bird, or plumage thereof, shall restore the
same to the owners by order of a justice; and
persons having them in their possession know-
ing them to have been stolen, shall suffer the
same punishment for each offence, as set forth
in § 31. And ý 33 makes the killing, wound-
ing, or taking any housedove or pigeon, under
such circumstances as shall not amount to lar-
ceny at common law, punishable by fine, on
conviction before a justice of the peace.
(26) Ante, 64. n. (25).

(5) See Hov. n. (5) at the end of the Vol. B. IV.
↑ See Ryland's note (5) at the end.

punishment capital. The laws of Draco at Athens punished it with death: but his laws were said to be written in blood; and Solon afterwards changed the penalty to a pecuniary mulct. And so the Attic laws in general continued (h); except that once, in a time of dearth, it was made capital to break into a garden, and steal figs: but this law, and the informers against the offence, grew so odious, that from them all malicious informers were stiled sycophants; a name which we have much perverted from its original meaning. From these examples, as well as the reason of the thing, many learned and scrupulous men have questioned the propriety, if not lawfulness, of inflicting capital punishment for simple theft (¿). And certainly the natural punishment for injuries to property seems to be the loss of the offender's own property; which ought to be universally the case, were all men's fortunes equal. But as those who have no property themselves, are generally the most ready to attack the property of others, it has been found necessary instead of a pecuniary to substitute a corporal punishment; yet how far this corporal punishment ought to extend, is what has occasioned the doubt. Sir Thomas More (j), and the marquis Beccaria (*), at the distance of more than two centuries from each other, have very sensibly proposed that kind of corporal punishment, which approaches the nearest to a pecuniary satisfaction; viz. a temporary imprisonment, with an obligation to labour, first for the party robbed, and afterwards for the public, in works of the most slavish kind: in

order to oblige the offender to repair, by his industry and dili- [237] gence, the depredations he has committed upon private property and public order. But notwithstanding all the remonstrances of speculative politicians and moralists, the punishment of theft still continues, throughout the greatest part of Europe, to be capital; and Puffendorf (1), together with sir Matthew Hale (m), are of opinion that this must always be referred to the prudence of the legislature; who are to judge, say they, when crimes are become so enormous as to require such sanguinary restrictions (n). Yet both these writers agree, that such punishment should be cautiously inflicted, and never without the utmost necessity.

Our ancient Saxon laws nominally punished theft with death, if above the value of twelvepence; but the criminal was permitted to redeem his life by a pecuniary ransom; as, among their ancestors the Germans, by a stated number of cattle (o). But in the ninth year of Henry the first, this power of redemption was taken away, and all persons guilty of larceny above the value of twelvepence were directed to be hanged; which law continues in force to this day (p). For though the inferior species of theft or petit larceny, is only punished by imprisonment or whipping at common law (q), or by statute 4 Geo. I. c. 11. may be extended to transportation for seven years, as is also expressly directed in the case of the plateglass company (r), yet the punishment of grand larceny, or the stealing

(h) Petit. LL. Attic. 1. 7, tit. 5.

(i) Est enim ad vindicanda furta nimis atroz, nec tamen ad refraenanda sufficiens; quippe neque furtum simpler tam ingens facinus est, ut capite debeat plecti; neque ulla poena est tanta, ut ab latrocinis cohibeat eos, qui nullam aliam artem quaerendi victus habent. (Mori Utopia. edit. Glasg. 1750. pag. 21.)-Denique, cum lez Mosaica, quanquam inclemens et aspera, tamen pecunia furtum, haud morte, mulctavit; ne putemus Deum, in nova lege clementiae qua pater imperat filiis majorem indulsisse nobis invicem saeviendi licentiam. sunt cur non licere putem ; quam vero sit absurdum,

Haec

above the value of twelvepence (which sum was the standard in the time of king Athelstan, eight hundred years ago), is at common law regularly death. Which, considering the great intermediate alteration (s) [*238] in the price or denomination of money, is undoubtedly a very rigorous constitution; and made sir Henry Spelman (above a century since, when money was at twice its present rate) complain, that while every thing else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper (t). It is true, that the mercy of juries will often make them strain a point, and bring in larceny to be under the value of twelvepence, when it is really of much greater value: but this though evidently justifiable and proper, when it only reduces the present nominal value of money to the ancient standard (u), is otherwise a kind of pious perjury, and does not at all excuse our common law in this respect from the imputation of severity, but rather strongly confesses the charge. It is likewise true, that by the merciful extensions of the benefit of clergy by our modern statute law, a person who commits a simple larceny to the value of thirteen pence or thirteen hundred pounds, though guilty of a capital offence, shall be excused the pains of death: but this is only for the first offence. And in many cases of simple larceny the benefit of clergy is taken away by statute; as for horse-stealing in the principals, and acces saries both before and after the fact (w); theft by great and notorious thieves in Northumberland and Cumberland (x); taking woollen cloth from off the tenters (y), or linens, fustians, callicoes, or cotton goods from the place of manufacture (z) (27); (which extends, in the last case, to aiders, assist ers, procurers, buyers and receivers); feloniously driving away, or otherwise stealing one or more sheep or other cattle specified in the [*239] *acts, (28) or killing them with intent to steal the whole or any

(s) In the reign of King Henry I. the stated value, at the exchequer, of a pasture-fed ox, was one shilling (Dial. de Scacc. l. 1,87.), which, if we should even suppose to mean the solidus legalis mentioned by Lynde wode (Prov. l. 3, c. 13. See Book 11. page 509), or the 72d part of a pound of gold, is only equal to 13s. 4d. of the present standard.

(t) Gloss. 350.

(u) 2 Inst. 189.

by statute 15 Geo. II. c. 27, thrown on the persons in whose custody such goods are found; the failure whereof is, for the first time, a misdemeanor punishable by the forfeiture of the treble value; for the second, by imprisonment, also; and the third time it becomes a felony, punished with transpor tation for seven years.

(z) Stat. 18 Geo. II. c. 27. Note, in the three last cases an option is given to the judge to trans

(w) Stat. 1 Edw. VI. c. 12. 2 & 3 Edw. VI. c. 33. port the offender: for life in the first case, for seven 31 Eliz. c. 12.

(r) Stat. 18 Car. II. c. 3. (y) Stat. 22 Car. II. c. 5. But, as it sometimes is difficult to prove the identity of the goods so stolen, the onus probandi with respect to innocence is now

(27) Clergy is restored by 4 Geo. IV. c. 53, which is now repealed by 7 and 8 Geo. IV. c. 27. And by 7 and 8 Geo. IV. c. 28, § 6, it is enacted, "That benefit of clergy with respect to persons convicted of felony, shall be abolished, but that nothing herein contained, shall prevent the joinder, in any indictment, of any counts which might have been joined before the passing of this Act."

By statute 7 and 8 Geo. IV. c. 30, § 3, maliciously cutting or destroying any goods or article of silk, woollen, linen, or cotton, or of any such materials mixed, or of any framework-knitted piece, stocking, hose, or lace, being in any loom or frame, or on any machine or engine, rack, or tenter, or any machinery whatsoever belonging to those manufactures, or entering any manufactory, building, or place, with intent to commit such offences, is

years in the second, and for fourteen years in the third; in the first and third cases instead of sentence of death, in the second after sentence is given.

punishable with transportation for life, or not less than seven years, or imprisonment not exceeding four years, with whipping in addition to male offenders. The 4 Geo. IV. c. 46, is repealed by 7 and 8 Geo. IV. c. 27. The former statute repealed the capital felony préscribed by 22 Geo. III. on this subject.

By 7 and 8 Geo. IV. c. 29, § 16, stealing to the value of 10s. any silk, woollen, linen, or cotton, or any mixture of such materials, whilst exposed in any stage of manufacture, in any field, or building, or other place, is punishable with transportation for life, or not exceeding fourteen years, or imprisonment not exceeding four years, with private or public whipping.

(28) Repealed by 7 and 8 Geo. IV. c. 27 See the next note.

part of the carcase (a), or aiding or assisting therein (29); thefts on navigable rivers above the value of forty shillings (b), or being present, aiding and assisting thereat (30): plundering vessels in distress, or that have suffered shipwreck (c) (31); stealing letters sent by the post (d); and also stealing deer, fish, hares, and conies under the peculiar circumstances mentioned in the Waltham black act (e) (32). Which additional severity is owing to the great malice and mischief of the theft in some of these instances; and, in others, the difficulties men would otherwise lie under to preserve those goods, which are so easily carried off. Upon which last principle the Roman law punished more severely than other thieves the abiegi, or stealers of cattle (ƒ); and the balnearii, or such as stole the clothes of persons who were washing in the public baths (g); both which constitution seem to be borrowed from the laws of Athens (h). And so too the ancient Goths punished with unrelenting severity thefts of cattle, or corn that was reaped and left in the field: such kind of property (which no human industry can sufficiently guard) being esteemed under the peculiar custody of heaven (i). And thus much for the offence of simple larceny.

Mixed or compound larceny is such as has all the properties of the former, but is accompanied with either one or both of the aggravations of a taking from one's house or person. First, therefore, of larceny from the house, and then of larceny from the person.

1. Larceny from the house, though it seems (from the considerations mentioned in the preceding chapter) () to have a higher degree

of guilt than simple larceny, yet it is not at all "distinguished from [*240] the other at common law (k); unless where it is accompanied with the circumstance of breaking the house by night; and then we have seen that it falls under another description, viz. that of burglary. But now by several acts of parliament (the history of which is very ingeniously deduced by a learned modern writer (), who hath shewn them to have gradually arisen from our improvements in trade and opulence), the benefit of clergy is taken from larcenies committed in a house in almost every instance; except that larceny of the stock or utensils of the plate-glass company from any of their houses, &c. is made only a single felony, and liable to transportation for seven years (m). The multiplicity of the general acts is apt to create some confusion; but upon comparing them diligently

(a) Stat. 14 Geo. II. c. 6. 15 Geo. II. c. 34. See Book I. page 88.

(b) Stat. 24 Geo. II. c. 45.

(c) St. 12 Ann. st. 2, c. 18. 26 Geo. II. c. 19. (d) Stat. 7 Geo III. c. 50.

(e) Stat. 9 Geo. I. c. 22. (f) Ff. 47, t. 14.

(29) Vide note (25), ante, 236, where the existing punishments for these offences are set forth.

(30) Vide note (20), ante, 235, where the present punishment is described. Clergy was allowed by statute 4 Geo. IV. c. 54, which is now repealed by 7 and 8 Geo. IV. c. 27.

(31) By 7 and 8 Geo. IV. c. 29, § 18, any person plundering or stealing any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind belonging to such ship or vessel, shall suffer death as a felon; provided that where articles

(g) Ibid. t. 17.

(h) Pott. Antiq. b. 1, c. 26.

(i) Stiernh. de jure Goth. 1. 3, c. 5.
(j) See page 223.

(k) 1 Hawk. P. C. 98.

(1) Barr. 375, &c.

(m) Stat. 13 Geo. III. c. 38.

of small value shall be stranded or cast on shore, and stolen, without cruelty, outrage, or violence, the offender may be prosecuted and punished as for simple larceny and in either case the offender may be tried in the county in which the offence is committed, or that next adjoining. The 12 Ann. st. 2, c. 18, and 26 Geo. II. c. 19, so far as they relate to the same subject, were repealed by the 7 and 8 Geo. IV. c. 27.

(32) Vide note (3), ante, 144, by which it will appear that the capital felony is remov. ed.

we may collect, that the benefit of clergy is denied upon the following domestic aggravations of larceny; viz. First, in larcenies above the value of twelvepence, committed, 1. In a church or chapel, with or without violence, or breaking the same (n); 2. In a booth or tent, in a market or fair, in the day-time or in the night, by violence or breaking the same; the owner or some of his family being therein (o): 3. By robbing a dwelling-house in the day-time (which robbing implies a breaking) any person being therein (p) 4. In a dwelling-house by day or by night, without breaking the same, any person being therein and put in fear (9); which amounts in law to a robbery; and in both these last cases the accessary before the fact is also excluded from his clergy (33). Secondly, in larcenies to the value of five shillings, committed, 1. By breaking any dwelling-house, or any out-house, shop, or ware-house thereunto belonging in the day-time, although no person be therein (r); which also now extends to aiders, abettors, and accessaries before the fact (s): 2. By privately stealing goods, wares, or merchandise in any shop, ware-house (t), coach-house, or stable, by day or by night; though the same be not broken open, and though no person be therein (u) (34) which likewise extends to such as assist, hire, or command the offence to be committed. Lastly, in larcenies to the value of forty shillings in a dwelling-house, or its out-houses, although the same be not broken, and whether any person be therein or no; unless committed against their masters by apprentices under the age of fifteen (v). This also extends to those who aid or assist in the commission of any such offence (35), (36).

[241]

2. Larceny from the person is either by privately stealing; or by open and violent assault, which is usually called robbery.

The offence of privately stealing from a man's person, as by picking his pocket or the like, privily without his knowledge, was debarred of the benefit of clergy, so early as by the statute 8 Eliz. c. 4. (37) But then

(n) Stat. 23 Hen. VIII. c. 1. 1 Edw. VI. c. 12. 1 Hal. P. C. 518.

(0) Stat. 5 & 6 Ed. VI. c. 9. 1 Hal. P. C. 522.
(p) Stat. 3 & 4 W. & M. c. 9.
(q) Ibid.

(33) By 7 and 8 Geo. IV. c. 29, § 12, it is enacted, "That if any person shall break and enter any dwelling-house, and steal therein any chattel, money, or valuable security, to any value whatever or shall steal any such property to any value whatever in any dwelling-house, any person therein being put in fear; or shall steal in any dwelling-house, any chattel, money, or valuable security, to the value, in the whole, of 51., or more; every such offender, being convicted thereof, shall suffer death as a felon."

And by 14, breaking into any building, being within the cartilage of a dwelling-house, but not part thereof, and stealing therefrom, is punishable with transportation for life, or not less than seven years, or imprisonment not exceeding four years, with private or public whipping to male offenders.

The 23 Hen. VIII. c. 1, § 3; 1 Ed. VI. c. 12, 10; 5 and 6 Ed. VI. c. 9, § 4; 39 Eliz. c. 15; 3 and 4 W. and M. c. 9; 10 and 11 W. III. c. 23; 12 Ann. st. 1, c. 7, § 1 and 2, are all repealed by 7 and 8 Geo. IV. c. 27. Vide ante, 223, note (10) et seq.

(r) Stat. 39 Eliz. c. 15.

(s) Stat. 3 & 4 W. & M. c. 9.
(t) See Foster, 78. Barr. 379.
(u) Stat. 10 & 11 W. III. c. 23.
(v) Stat. 12 Ann. st. 1, c. 7 (35).

(34) By statute 7 and 8 Geo. IV. c. 29, § 15, persons breaking and entering any shop, warehouse, or counting-house, and stealing therein any chattel, money, or valuable security, are liable to transportation for life, or not less than seven years, or imprisonment not exceeding four years, with private or public whipping for male offenders.

(35) Repealed by stat. 7 and 8 Geo. IV. c. 27. The sum mentioned in the text is now raised to five pounds, vide ante, note 33.

(36) See ante 224, note 12, and 229 note 2, as to laws of New-York.

(37) Repealed by 7 and 8 Geo. IV. c. 27, and see 7 and 8 Geo. IV. c. 28, § 6 and 7; the former enacting that benefit of clergy, with respect to persons convicted of felony, shall be abolished; and the latter, that no person convicted of felony shall suffer death, unless for some felony excluded from benefit of clergy before or on the first day of the then present session of parliament, or made punishable with death by some statute passed after that day.